62 T.C. 760">*760 OPINION

Respondent determined a deficiency of $ 9,446.92 in petitioner's Federal income1974 U.S. Tax Ct. LEXIS 51">*53 tax for the calendar year 1969. The issue presented is whether section 6013(e)¹ absolves petitioner, a resident of a community property State, from tax liability where petitioner filed a separate tax return for the year in question.

All the facts have been stipulated and are found accordingly. Petitioner resided in Beaumont, Tex., at the time of the filing of the petition in this case. Petitioner filed a timely separate income tax return for the year 1969 with the district director of internal revenue at Austin, Tex. The return was prepared by a public accountant, so far as petitioner knows, at the request of her husband.

During the taxable year 1969 petitioner was married to Howard V. Galliher, who earned community income in that year of $ 83,607.30. Petitioner does not contest the amount, but she has no specific knowledge 62 T.C. 760">*761 concerning her husband's income in 1969. Petitioner also does not contest that partnership1974 U.S. Tax Ct. LEXIS 51">*54 expenses in the amount of $ 1,798 and a swimming pool expense of $ 1,400 claimed on her 1969 income tax return do not constitute ordinary and necessary business expenses, although again she has no specific knowledge concerning these expenses.

Petitioner did not significantly benefit from the income earned by her husband in 1969 and was under the care of physicians and physically unable to work or participate in his activities in that year. Petitioner's husband filed for divorce against petitioner in 1969 in the Court of Domestic Relations of Jefferson County, Tex. On July 30, 1970, petitioner, a cross-plaintiff in that proceeding, was granted a divorce from her husband.

Section 6013(e)(1)² absolves a spouse from liability for tax, interest, and penalties on income omitted from a joint return under specified circumstances. In order to qualify for relief under section 6013(e)(1), petitioner must meet three separate and distinct criteria: she must establish that she filed a joint return from which income attributable to her husband and in excess of 25 percent of the gross income stated in the return was omitted; that she neither knew nor had reason to know of the omission; and that1974 U.S. Tax Ct. LEXIS 51">*55 under all the facts and circumstances (including whether she benefited significantly from the omitted income), it would be inequitable to hold her liable for the tax on the omitted income.

1974 U.S. Tax Ct. LEXIS 51">*56 Petitioner contends that because she met every requirement of section 6013(e) except for the filing of a joint return, she should be relieved from liability in view of the remedial nature of the statute and the 62 T.C. 760">*762 similarity of the inequity it addresses to her case. Respondent argues, and we are compelled to agree, that the fact that the petitioner filed a separate return renders section 6013(e) inapplicable to her case. ³1974 U.S. Tax Ct. LEXIS 51">*57 The crucial difference between petitioner's case and the remedial scope of section 6013(e) lies in her failure to meet the requirement of section 6013(e)(1)(A) that a joint return must be made. Section 6013(e) provides relief only in those situations where a joint return is filed and the liability is joint and several under section 6013(d)(3). ⁴ Respondent is not attempting to hold petitioner liable for the deficiency on her husband's return but is only asserting a deficiency with respect to income attributable to her under Texas community property law and omitted from her separate return.

Petitioner points to what she feels is the unfair and anomalous result that occurs under section 6013(e) if separate returns are filed in a community property State. It is true that in noncommunity property States the situation in the case at bar would not arise. In those States only the income attributable to the earnings and property of the individual spouse filing the return is reported on the separate return, while in a community property State, the income of each spouse is community income and one-half is therefore attributable1974 U.S. Tax Ct. LEXIS 51">*58 to the other spouse and must be reported on the other spouse's separate return. United States v. Malcolm, 282 U.S. 792">282 U.S. 792 (1931). Since section 6013(e) admittedly provides relief to an innocent spouse when income is omitted from a joint return, petitioner argues that Congress must have intended the relief to encompass the analogous inequity arising when separate returns are filed in a community property State.

But Congress was cognizant of the effect of community property laws and the statute itself reflects consideration of their effect. Section 6013(e)(2)(A) provides that income (other than gross income from property) shall be attributed to a spouse "without regard to community property laws." This provision enables a spouse who filed a joint return including income attributable to both spouses by operation of 62 T.C. 760">*763 community property law to nevertheless meet the requirement of section 6013(e)(1)(A) that the omitted income be attributable to one spouse. The legislative history demonstrates that Congress did not intend the provision to affect any of the other requirements of section 6013(e), specifically the requirement of filing a joint return. 1974 U.S. Tax Ct. LEXIS 51">*59 The report of the Senate Finance Committee states:

Income earned by a husband, for example, and omitted from a joint return, is to be attributed to the husband, even though it may constitute community property, in determining whether the wife is entitled to relief from the tax liability under this provision. [Emphasis added. S. Rept. No. 1537, 91st Cong., 2d Sess. (1970), 1971-1 C.B. 608.]

The statute simply does not provide relief where a separate return was filed. In interpreting ambiguous provisions of a remedial statute, the canons of construction suggest a broad interpretation consistent with eliminating the inequity the legislature intended to remedy. But Congress clearly intended to limit the relief provided to situations where a joint return was filed and the statute clearly states this requirement. Petitioner ostensibly argues for a liberal construction; in reality she is asking that the statute be amended. She must make this argument to another forum. ⁵

1974 U.S. Tax Ct. LEXIS 51">*60 Petitioner also argues that interpreting section 6013(e)(2)(A) to provide relief only to an innocent spouse where a joint return is filed denies equal protection of the law to innocent spouses whose problem arises due to the operation of community property laws. But as noted, Congress addressed the relief provisions to situations where joint and several liability is imposed by the statute on individuals filing a joint return, regardless of where they reside. Petitioner did not file a joint return and thereby subject herself to joint and several liability. Her problem results from the operation of community property law, and the Supreme Court long ago upheld the constitutionality of distinctions arising from community property laws. Poe v. Seaborn, 282 U.S. 101">282 U.S. 101, 282 U.S. 101">117, 282 U.S. 101">118 (1930).

Petitioner cites Mitchell v. Commissioner, 430 F.2d 1 (C.A. 5, 1970), Angello v. Metropolitan Life Insurance Co., 430 F.2d 7 (C.A. 5, 1970), and Ramos v. Commissioner, 429 F.2d 487 (C.A. 5, 1970), in support of her alternative argument that if she is not entitled1974 U.S. Tax Ct. LEXIS 51">*61 to relief under section 6013, her rights under Texas law are of such a character that she is not personally liable out of her separate property for 62 T.C. 760">*764 income taxes due on community income where she received no benefit from the community income. The Ramos case involved a woman domiciled in Texas who was separated from her husband and who neither knew of nor received benefits from community income earned by her husband during the years in question. The Fifth Circuit reversed this Court's Memorandum Opinion in Ramos holding that the wife had a present vested interest in one-half the earnings of her husband under Texas community property law on which she was taxable.

The Fifth Circuit's holding in Ramos was based on their decisions in Mitchell and Angello. However, the Supreme Court's subsequent reversal, 403 U.S. 190">403 U.S. 190 (1971), of the Fifth Circuit's decisions in Mitchell and Angello effectively overruled their decision in Ramos, and is therefore dispositive of petitioner's alternative argument. (See Broday v. United States, 455 F.2d 1097 (C.A. 5, 1972).)

Petitioner's situation is unfortunate. 1974 U.S. Tax Ct. LEXIS 51">*62 But as the Supreme Court said in a similar case:

The law, however, is clear. The taxes were due. They were not paid * * * The "fault," if fault there be, lies with the four taxpayers and flows from the settled principles of the community property system. If the wives were to prevail here, they would have the best of both worlds. ⁶

Decision will be entered for the respondent.